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Antonio Alve v. First Franklin Financial Corp.

January 9, 2013

ANTONIO ALVE, PLAINTIFF,
v.
FIRST FRANKLIN FINANCIAL CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Through these proposed findings and recommendations, the undersigned recommends that plaintiff's case be dismissed with prejudice and that this case be closed. First, it appears from the court's docket that plaintiff has not timely served any of the defendants with process in this case. Second, in violation of the court's orders and the local rules of this district, plaintiff failed to file a status report in advance of the status conference on November 1, 2012, failed to appear at the status conference, and failed to comply with an Order to Show Cause issued on November 6, 2012. (Order to Show Cause ("OSC"), Dkt. No. 5.)

I. BACKGROUND

Plaintiff is proceeding without counsel in this action.*fn1 Plaintiff filed a complaint on May 23, 2012, naming twelve defendants. (Compl., Dkt. No. 1.) Pursuant to Federal Rule of Civil Procedure 4(m) and this court's Order Setting Status Conference (Dkt. No. 3), plaintiff was obligated to serve all defendants with process within 120 days of May 23, 2012. (See Order Setting Status Conference, Dkt. No. 3 ¶ 1.) Plaintiff had until September 20, 2012, to effectuate service of process upon the defendants, but the court's docket does not reflect that such service has been completed.*fn2 (Id.)

This matter was set for a Status (Pretrial Scheduling) Conference on November 1, 2012. (See Order Setting Status Conference, Dkt. No. 3 ¶ 5.) Plaintiff was required to file a status report "not later than seven days prior to" the status conference. (Id. ¶ 6.) Plaintiff did not file a status report, and he has not filed any documents in this action since filing the complaint. (Compl., Dkt. No. 1.) Plaintiff did not appear at the Status (Pretrial Scheduling) Conference on November 1, 2012.

As a result, the undersigned issued an order stating his inclination to recommend that the claims against the defendants be dismissed because the time to serve them has expired. (OSC at 2.) In the OSC, the undersigned specifically informed plaintiff that Federal Rule of Civil Procedure 4(m) provides:

(m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. (Id.) The OSC also informed plaintiff that well over 120 days had passed since the complaint was filed in this court. (Id.) The OSC informed plaintiff that, absent plaintiff's showing of good cause, the court "must" dismiss plaintiff's claims against the defendants pursuant to Rule 4(m). (Id.) The OSC also required plaintiff to show, in writing and before December 4, 2012, why his claims should not be dismissed. (Id.) To date, plaintiff has not filed the required writing, nor has he filed anything else in this case.

In addition, the OSC informed plaintiff that the undersigned was also inclined to recommend the dismissal of plaintiff's action with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, and failure to comply with the court's Order Setting Status Conference. (OSC at 2-3 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002) (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal).)

The OSC explained that plaintiff had previously been warned that his failures to comply with court orders and the rules of litigation procedure could result in a recommendation that this case be dismissed. (OSC at 3 (citing Order Setting Status Conference, Dkt. No. 3 ¶ 7 ("Failing to obey federal or local rules, or order of this court, may result in dismissal of this action. This court will construe pro se pleadings liberally, but pro se litigants must comply with the procedural rules.")).)

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to comply with the court's local rules, or failure to comply with the court's orders.*fn3 See, e.g., Chambers, 501 U.S. at 44 (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon, 403 F.3d at 689 (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik, 963 F.2d at 1260 ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."); Pagtalunan, 291 F.3d at 642-43 (affirming district court's dismissal of case for failure to prosecute when habeas petitioner failed to file a first amended petition). This court's Local Rules are in accord. See E. Dist. Local Rule 110 ("Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court."); E. Dist. Local Rule 183(a) (providing that a pro se party's failure to comply with the Federal Rules of Civil Procedure, the court's Local Rules, and other applicable law may support, among other things, dismissal of that party's action).

A court must weigh five factors in determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court's local rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:

(1) the public's interest in expeditious resolution of litigation;

(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) ...


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